Opinion
Submitted May 27, 1938 —
Decided September 16, 1938.
1. To entitle a policeman of a municipality to a pension for permanent disability under chapter 160 of the laws of 1920, it is necessary that the disability arise out of the performance of his duties as a policeman.
2. A member of a police force, who applies for a pension on the ground of permanent disability due to an attack of pneumonia, has the burden to prove that his illness had its origin in his employment, and not in other causes.
On appeal from the Supreme Court in which the following per curiam was filed:
"Cummings was a policeman of the borough of Belmar when he was taken ill with pneumonia in December, 1929, and this illness resulted in a total and permanent disability to perform the duties of a police officer.
"On May 17th, 1930, he presented a petition to the Belmar pension commission for retirement on pension. There was long delay in the hearing and sundry court proceedings (unnecessary here to recite) intervented. Finally, however, the application came on to be heard and as a result the right to a pension was decided by the pension commission adversely to the petitioner on August 12th, 1935.
"Cummings has a writ of certiorari to review this action of the commission which was based on a finding that the disability was not incurred in the performance of his duties as a policeman.
"The one substantial question argued is that the commission on the evidence produced should have decided otherwise, though there is a suggestion that the act accords pensions to policemen who have become disabled by disease from any cause.
"The Pension act relied on is chapter 160, laws of 1920. It provides in section 1 for retirement and pension on application after reaching fifty years of age and after serving twenty years. The second section provides that one who shall have received permanent disability in the performance of his duty shall upon certificate of the surgeon or physician of the police department * * * be retired on pension. It further provides [and here is the applicable part] that when a member of the police force shall desire to retire by reason of injury or disease said person shall make application, c.
"It was under the second section that the prosecutor applied for retirement and pension.
"We think it clear that the petitioner could only succeed by showing that his disability, which is admitted, arose out of his performance of duty as a policeman. The words injury and disease are used in the same connection and both relate back to the disability received in such performance above recited.
"This being true we take up the proofs. Cummings had been a patrolman, serving at intermittent times, for a period of seven years. On February 22d 1929, he was again appointed as a policeman. In December of that year he was suspended for a week and charges of misconduct preferred against him. The suspension had expired and later in December he returned to duty. His story was that as he left the police headquarters to take up his beat on the day the disease is claimed to have started he got a slight pain from his neck down; that he had a little pain before he left home, and that he had suffered recurrent colds during the year. It appeared that during the fall he suffered from rheumatism due to bad teeth or other poisons. Also that he was addicted to much drinking and lost considerable time partly in consequence, which physicians testified might impair his resistance to pneumonia. There is no indication that the specific disease which produced his disability had its origin in exposure.
"The burden was on the prosecutor to prove by a preponderance of the evidence that his illness had its origin in his employment and not to other causes. The pension commission found against him and we agree with that result. Our examination of the proofs convinces us that the claimant's illness and subsequent disablement were not received in the performance of his duties as a policeman.
"The denial of the pension is affirmed, with costs."
For the appellant, Lester C. Leonard.
For the respondent, Collins Corbin ( Edward A. Markley and James J. Langan, of counsel).
The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered per curiam in the Supreme Court.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, CASE, BODINE, HEHER, PERSKIE, PORTER, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, WALKER, JJ. 15.
For reversal — None.